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IntroductionThe "plea system" is an important system in criminal proceedings in mainland China, and plays a role in saving judicial resources and reducing the defendant's punishment. In practice, the defendant often has ambivalence about not agreeing with the sentencing recommendation, but is worried that the defense opinion will not be adopted, and then appeals after admitting guilt and accepting punishment.
Keyword: "No increase in sentence on appeal"
Article 237 of the Criminal Procedure Law of the People's Republic of China: Second-instance people's courts hearing appeals from the defendant or his legally-designated representative, defender, or close relatives must not increase the defendant's punishment. In cases where the second-instance people's court remands the case to the original people's court for new trial, the original people's court must not increase the defendant's punishment except where there are new facts of the crime and the people's procuratorate supplements the prosecution. Where the people's procuratorate raises a prosecutorial counter-appeal or the private prosecutor submits an appeal, the restrictions of the preceding paragraph are not to be applied.
1. Focus prompts
According to article 347 of the Criminal Procedure Interpretation: "'Admission of guilt' as provided for in article 15 of the Criminal Procedure Law refers to the criminal suspect or defendant voluntarily and truthfully confessing his or her own crime and having no objection to the alleged facts of the crime. "Acceptance of punishment" as provided for in article 15 of the Criminal Procedure Law refers to the criminal suspect or defendant sincerely repenting and being willing to accept punishment. Where the defendant admits guilt and accepts punishment, it may be handled in accordance with article 15 of the Criminal Procedure Law with a simple procedural and substantive lenient disposition. It can be seen that where the defendant admits guilt and accepts punishment, he may have the effect of commuting his sentence. However, the original intention of the plea system is to save judicial resources so that criminal cases can be tried quickly and quickly, and where the defendant admits guilt and accepts punishment and then appeals, this undoubtedly undermines this legislative principle. In this case, the procuratorate filed a protest on this basis, but the court of second instance denied the procuratorate's grounds for protest and did not revoke the appellant's plea.
II. Summary of the Trial
The Beijing No. 2 Intermediate People's Court held that: although the procuratorate held that "the appellant Wan Jixiang's appeal on the grounds that the facts were unclear and the sentence was too heavy, it was a denial and revocation of the original "Plea Affidavit", and it was a form of admitting guilt and accepting punishment in exchange for a lighter sentence, and then using the principle of 'appeal without increasing the sentence' to file an appeal, the motive for admitting guilt did not exist, and he should not be given a lenient punishment in accordance with law." However, the appellant did not deny the charges and the main facts of the crime, and only believed that the amount of the crime did not match, which was actually a misunderstanding of whether the amount of investment by the company's personnel was determined to be a criminal amount, and did not deny the main facts of the crime charged, nor should Wan Jixiang's expectation of applying a suspended sentence be regarded as a malicious appeal of "admitting guilt and accepting punishment in exchange for a lighter sentence, and then using the principle of not increasing the sentence on appeal to file an appeal, and the motive for admitting guilt is not pure". Therefore, the procuratorate's grounds for protest were not accepted.
3. Judgment documents
Beijing No. 2 Intermediate People's Court
Criminal Judgments
(2021) Jing 02 Xingzhong No. 225
Procuratorial Organs: Beijing Dongcheng District People's Procuratorate.
The appellant (defendant in the original trial) Wan Jixiang, male, born on October 14, 1987, with a university education, was the deputy general manager of Beijing Starstar Asset Management Co., Ltd. before the incident, and his household registration was in Chaoyang District, Beijing; he was detained on July 14, 2020, and arrested on August 21, 2020, on suspicion of illegally absorbing public deposits;
Defender: Li Jianbo, lawyer of Hebei Jinlong Law Firm.
The defendant in the original trial, Zhang Xuena, female, born on October 3, 1989, with a university education, was the business director of the marketing department of Beijing Starstar Asset Management Co., Ltd. before the case, and lived in Qiaoxi District, Shijiazhuang City, Hebei Province, and was detained on July 14, 2020 on suspicion of illegally absorbing public deposits, and was released on bail pending trial on August 21 of the same year.
The defendant in the original trial, Shi Tao, male, was born on October 15, 1987, was a Chinese beginner, was the business director of the marketing department of Beijing Starstar Asset Management Co., Ltd. before the case, and lived in Tongzhou District, Beijing; in 2008, he was sentenced to eight months' imprisonment for robbery, and was released on March 8, 2009; he was detained on July 14, 2020 on suspicion of illegally absorbing public deposits, and was released on bail on August 21 of the same year.
The defendant in the original trial, Zeng Meiqin, female, born on December 25, 1986, with a college education, was the business director of the marketing department of Beijing Stark Bank Asset Management Co., Ltd. before the case, and was registered in Cao County, Shandong Province, on suspicion of illegally absorbing deposits from the public, was detained on July 14, 2020, and released on bail pending trial on August 21 of the same year.
The Beijing Dongcheng District People's Court heard the case of the Beijing Dongcheng District People's Procuratorate accusing the defendants Wan Jixiang, Zhang Xuena, Shi Tao, and Zeng Meiqin of committing crimes, and rendered the (2020) Jing 0101 Xing Chu No. 817 Criminal Judgment on February 23, 2021. After the verdict was announced, within the statutory time limit, the defendant Wan Jixiang of the original trial was not satisfied and appealed, and the People's Procuratorate of Dongcheng District, Beijing Municipality, filed a protest with the Jingdong Procuratorate No. 2 Criminal Appeal [2021] Z2. This court formed a collegial panel in accordance with law and tried the case in open court. The Second Branch of the Beijing Municipal People's Procuratorate appointed procurator Ning Chunhui to appear in court to perform his duties, and appellant Wan Jixiang and his defender Li Jianbo, and defendants Zhang Xuena, Shi Tao, and Zeng Meiqin appeared in court to participate in the proceedings. The case was deliberated by the collegial panel and discussed and decided by the adjudication committee, and the trial has now been concluded.
The Beijing Dongcheng District People's Court ruled that:
Between May 2020 and July 2020, the defendant Wan Jixiang, together with the defendants Zhang Xuena, Shi Tao, Zeng Meiqin and others, signed a "Joint Investment Agreement" with the investors on the 8th floor of Block 5, No. 6, Jianguo Road, Gongyuan, Dongcheng District, this city, in the name of Beijing Starden Bank Asset Management Co., Ltd. (hereinafter referred to as "Starden"), without the approval of the relevant departments in accordance with law, through telemarketing, distribution of leaflets and other channels to the public and other agreements, promising high returns, and successively absorbing 26 investors' funds totaling RMB 2.93 million.
Among them, the defendant Wan Jixiang participated in the illegal absorption of funds of RMB 2.93 million, the defendant Zhang Xuena participated in the illegal absorption of funds of RMB 1.57 million, the defendant Shi Tao participated in the illegal absorption of funds of RMB 500,000, and the defendant Zeng Meiqin participated in the illegal absorption of funds of RMB 410,000.
Defendants Wan Jixiang, Zhang Xuena, Shi Tao, and Zeng Meiqin were seized on July 14, 2020. The illegal gains involved in the case have been returned and seized in the case.
The evidence for the court of first instance to determine the above facts includes: the registration form for accepting the case, the process of arriving at the case, the explanation of the situation, the description of the work, the materials reported to the case, the investment agreement, the pledge agreement, the receipt, the transfer record, Investment contract, judicial appraisal opinion and WeChat chat record issued by Beijing Tongda Fazheng Judicial Appraisal Center, statistical table of investors and corresponding salesmen of Skadden Bank, industrial and commercial registration information of Shandong Jubao Degui Culture Communication Co., Ltd., reply letter of the Office of Beijing Banking and Insurance Regulatory Bureau on the relevant situation of Beijing Stark Bank Asset Management Co., Ltd., account opening of Starstar Bank, bank transaction flow and counterparty information, seizure decision, seizure list, co-perpetrators Zhou 1, Li 1, Zhou 2, Zhang, Xia's confession, the testimony of witnesses Song, Lu, Liu, and Li2, the testimony and identification records of investors Tang, Shuang, and others, audio-visual materials, criminal verdicts, and defendants Wan Jixiang, Zhang Xuena, Shi Tao, and Zeng Meiqin's confessions, household registration materials, and plea affidavits and other evidence.
Based on the above facts and evidence, the Beijing Dongcheng District People's Court held that:
Defendants Wan Jixiang, Zhang Xuena, Shi Tao, and Zeng Meiqin ignored national law and violated the laws and regulations of the state on financial management by absorbing funds from the public, and defendants Wan Jixiang and Zhang Xuena illegally absorbed a huge amount of public deposits, and the four defendants' acts disrupted the financial order, all of which constituted the crime of illegally absorbing public deposits, and should be punished in accordance with law. In view of the fact that defendant Wan Jixiang voluntarily pleaded guilty and accepted punishment and actively returned unlawful gains, this court gave him a lighter punishment in accordance with law, and that defendants Zhang Xuena, Shi Tao, and Zeng Meiqin voluntarily pleaded guilty and accepted punishment and actively returned unlawful gains, and this court gave them a lighter punishment and announced a suspended sentence in accordance with law. Therefore, the verdict: 1. The defendant Wan Jixiang committed the crime of illegally absorbing public deposits and was sentenced to three years imprisonment and a fine of 50,000 yuan. 2. Defendant Zhang Xuena committed the crime of illegally absorbing public deposits and was sentenced to three years imprisonment, suspended for three years, and fined 50,000 yuan. 3. Defendant Shi Tao committed the crime of illegally absorbing deposits from the public, and was sentenced to one year imprisonment, suspended for one year, and fined 20,000 yuan. 4. Defendant Zeng Meiqin committed the crime of illegally absorbing public deposits, and was sentenced to eight months imprisonment, suspended for one year, and fined 20,000 yuan. 5. Order the defendant Wan Jixiang to make restitution for the economic losses of the investors, and the defendants Zhang Xuena, Shi Tao, and Zeng Meiqin to make restitution for the economic losses of the investors within the scope of the illegal deposits they have absorbed. 6. The defendants Wan Jixiang's restitution of RMB 330,000, Zhang Xuena's restitution of RMB 70,000, Shi Tao's restitution of RMB 30,000, and Zeng Meiqin's restitution of RMB 30,000 were merged into item 5 of the judgment for enforcement. 7. Seized items that have not been transferred with the case are to be handled by the seizing organs in accordance with law.
Wan Jixiang appealed:
He was not the person in charge of the company, but only acted according to the instructions of his superiors, and he only earned 60,000 yuan and returned 330,000 yuan, and the original sentence was too heavy. Liu's investment of 500,000 yuan should not be included in the amount of his crime, and the lecturer's materials were not given by him. He had reported to the public prosecution and hoped that the court of second instance would give him a suspended sentence.
Wan Jixiang's defense opinion is:
Wan Jixiang was instructed to engage in illegal accumulation, truthfully confessed after arriving at the case, sincerely repented, and actively returned the stolen goods, and it was five times the return of the stolen goods, which was obviously heavier than the sentencing of Wan Jixiang in similar cases, and it is recommended that the second-instance trial sentence be changed in accordance with law and a suspended sentence should be applied to Wan Jixiang.
The Beijing Dongcheng District People's Procuratorate's counter-appeal opinion is:
The procurator of the Second Branch of the Beijing Municipal People's Procuratorate appeared in court:
The Dongcheng District People's Procuratorate's counter-appeal is correct and should be supported. Wan Jixiang's grounds for appeal could not be sustained, Wan Jixiang did not sincerely repent, shirked responsibility during interrogation, and did not truthfully confess his position and role in the case, and did not meet the requirements for admitting guilt and accepting punishment, and it is recommended that the court of second instance change the judgment in accordance with law.
The evidence enumerated in the original judgment to determine the facts of this case has been cross-examined and confirmed by the court of first instance, and this court has also confirmed it after cross-examination at trial. During the trial before this court, the appellant Wan Jixiang and his defenders, as well as the defendants Zhang Xuena, Shi Tao, and Zeng Meiqin, did not present any new evidence. The procurator of the Second Branch of the Beijing Municipal People's Procuratorate presented the judicial appraisal opinion and WeChat chat records issued by the Beijing Tongda Fazheng Judicial Appraisal Center in court to prove Wan Jixiang's specific role in this case. After trial, this court held that the facts ascertained in the original judgment were clear, and the evidence was credible and sufficient.
Based on the facts and evidence of this case, this court makes a comprehensive judgment as follows:
1. Wan Jixiang did not appeal in bad faith
Wan Jixiang signed a plea affidavit during the review for prosecution phase, and the court of first instance also applied the ordinary procedures to hear the case in accordance with the plea leniency system. After the court of first instance pronounced the sentence in accordance with the sentencing recommendation, Wan Jixiang appealed on the grounds that the amount of the crime did not match, the sentence was too heavy, and he hoped that a suspended sentence would be applied to him. During the second-instance trial, Wan Jixiang's confession did not change, and he had no objection to the main facts and charges of the crime determined in the first-instance trial. Upon review, this court is of the opinion that
2. The facts ascertained in the original judgment were clear and the sentencing was appropriate
The court of first instance ascertained through trial that Wan Jixiang and others illegally absorbed a total of 2.93 million yuan in the name of Starbank, which did include more than 50 yuan of investment funds from Liu, a staff member of the company, but when calculating the amount of crimes in which Wan Jixiang and others participated, the investment amount of the company's internal employees should not be deducted, and the court of first instance found that the amount of crimes committed by the defendants was correct. Wan Jixiang, as a senior manager of Skadden Bank, played a prominent role in leasing the venue, being in charge of personnel recruitment and managing the investment team, and should be liable for the economic losses of all investors in the case. The court of first instance gave a lighter punishment within the statutory range of punishment on the basis of his circumstances and role in the joint crime, and comprehensively considered the sentencing circumstances such as returning the stolen goods after he was brought into the case, admitting guilt and accepting punishment, and the sentencing was not improper, and the clues raised by Wan Jixiang have not been verified to be true, so there is no reason for a lenient punishment in the second instance.
In summary, this court did not accept Wan Jixiang's grounds for appeal, the defender's defense opinions, and the protest opinions and court appearance opinions of the Beijing Dongcheng District People's Procuratorate and the Second Branch of the Beijing Municipal People's Procuratorate.
The Court is of the view that:
The appellant (defendant in the original trial) Wan Jixiang and the defendants Zhang Xuena, Shi Tao, and Zeng Meiqin in the original trial violated the laws and regulations of the state on financial management by absorbing funds from the public, of which Wan Jixiang and Zhang Xuena illegally absorbed a huge amount of deposits from the public, and the acts of the four disrupted the order of financial management, all of which constituted the crime of illegally absorbing deposits from the public and should be punished in accordance with law. Wan Jixiang voluntarily pleaded guilty and accepted punishment and actively made restitution of illegal gains, and may be given a lighter punishment and a suspended sentence in accordance with law; Zhang Xuena, Shi Tao, and Zeng Meiqin voluntarily pleaded guilty and accepted punishment and actively returned illegal gains, and may be given a lighter punishment and a suspended sentence in accordance with law. The judgment rendered by the court of first instance on the basis of the facts of the crimes, the nature and circumstances of the crimes, and the degree of harm to society made by the court of first instance found that the conviction and application of the law were correct, the sentencing was appropriate, the trial procedures were lawful, and the order to compensate the investors for their economic losses was correct, and the handling of the seized money and property was not improper and should be upheld. In accordance with the provisions of Article 236, Paragraph 1 (1) of the Criminal Procedure Law of the People's Republic of China
The ruling reads as follows:
The appeal of the People's Procuratorate of Dongcheng District, Beijing Municipality and the appeal of the appellant (defendant in the original trial) Wan Jixiang were rejected, and the original judgment was upheld.
This ruling is final.
Presiding Judge Qiu Bo
Judge Qi Aijun
Adjudicator Chang Yan
August 19, 2021
Judge's assistant Gao Chang
Clerk Xu Ting